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Welcome to Columbia Antitrust Law and Economics Association’s blog. CALEA was established in March 2010 as the first student group in an Ivy League School solely dedicated to antitrust issues, by a group of Columbia Law School students. The group was initially known as the Columbia International Antitrust Law Association or CIALA.

By using this blog, CALEA hopes to maintain an open dialogue among students, professors, alumni and practitioners interested in legal issues in connection with the study, practice and development of antitrust law both in the US and in other jurisdictions. We will post here our ideas and latest research findings on current issues in the field of antitrust law all over the world, in the hope of opening up discussions that will bring forth insights into these topics and relevant concerns. We will try to keep this blog as updated as possible. Your valuable comments and feedback are more than welcome. Please join our discussions by clicking ‘add a comment’ next to each entry.

On Monday, the Justice Department filed suit in New York in an attempt to block NCM’s $375 million acquisition of Screenvision LLC. The DOJ alleges that the combined company would be able to control advertising on 88% of the country’s movie screens, and cites statements from the parties indicating anticompetitive motives.

Aggressive competition between NCM and Screenvision for movie theaters led NCM to observe that “we need to buy [Screenvision] before either us or [Screenvision] does a stupid deal.”

By April 2014, NCM arrived at what it called a “Strategy Decision Crossroads.” As NCM had told its board it could either acquire Screenvision, which would give NCM the ability to “Control Selling Tactics,” including “Pricing,” or it could compete through more aggressive pricing and adding theaters to its network. NCM chose to buy out its competitor.

NCM viewed Screenvision’s “new strategy of undercutting [NCM’s] pricing by 50 percent (or more) [as] a direct threat to [NCM’s] business model” and “a very unusual strategy in a duopoly.”

The companies insist that the merger will allow the new company to compete more effectively and continue to deliver value to advertisers.

The Wall Street Journal reports on a lawsuit brought by Motorola alleging price fixing by “Samsung Electronics Co. , Sharp Corp. , LG Display Co. and other Asian companies”. In March, the Seventh Circuit ruled that most of Motorola’s claims could not be heard as they involved conduct which did not directly effect United States commerce. However, after considerable back and forth, that opinion was vacated and arguments will now be heard on the merits of the case.

This WSJ article explores a movie theater industry practice known as “clearance” in which big theaters insist on exclusive rights to screen movies in their particular market. The big theaters insist the practice helps with costs and actually provides for increased competition, but smaller chains are upset. One such chain filed suit in Atlanta in January, and while not the subject of a formal investigation, the Journal reports that DOJ officials have been “seeking information on the issue.”

CVS, which recently stopped selling tobacco at its own stores, is “offering a prescription-drug plan that charges patients more if they buy their medications at pharmacies that sell tobacco products…” A group of smaller pharmacies is crying foul, calling the move an unfair competitive practice, and the WSJ articles quotes an antitrust attorney who sees potential merit in the claim. An FTC investigation into other CVS Caremark marketing tactics was closed in 2012 without action.

More on Amazon

As Amazon’s dispute with Hachette stretches on, the company continues to be the subject of media scrutiny. In the New Republic, Franklin Foer writes that Amazon must be stopped and laments the “trail of destruction” left by Amazon. Predatory pricing claims are of course very tough to win, a point Foer acknowledges by drawing a comparison to a time 100 years ago, when “the law was not up to the task of protecting the threats to democracy posed by monopoly…” In a similar vein, Paul Krugman’s column in Monday’s New York Times compares Amazon’s success to Standard Oil’s, and talks about Amazon’s monopsonist, “robber-barron-type market power.”

Taking the opposite view, Matt Yglesias writes that Amazon is doing the public a service by wiping out book publishers. Moreover, Yglesias argues that Amazon in fact faces quite a lot of competition in e-books from companies like Barnes & Noble, Apple, and Google.

Posted by Ryan Johansen on October 17th, 2014 :: Filed under UncategorizedComments: 0

Supreme Court Hears Arguments in Dental Case

On October 14th, the Supreme Court heard arguments in North Carolina Board of Dental Examiners v. Federal Trade Commission. The case arose when non-dentists in hair salons, spas, and shopping malls began offering teeth whitening services. The state’s Board of Dental Examiners ordered them to stop. When the FTC sued, the board claimed they were engaged in a type of state action immune from the Sherman Act under Parker v. Brown.

In an argument analysis posted at SCOTUSBlog, Eric M. Fraser writes that the Court seemed highly skeptical of the board’s argument. At the same time, the Court will be worried about ruling too broadly in this case, and thus potentially deterring knowledgeable professionals from serving on such boards by opening them up to antitrust liability.

Sysco Looks to Sell Assets to Secure US Foods Merger

Regulators are expressing “serious concerns” with a proposed $3.5 billion merger between Sysco and US Foods. The FTC worries that the merger between the #1 and #2 food distributors will serve to eliminate Sysco’s only national competitor. Sysco will attempt to sell some assets to smaller regional distributors in attempt to win regulatory approval.

Posted by Ryan Johansen on October 9th, 2014 :: Filed under UncategorizedComments: 0

This week, we take a look at some recent happenings surrounding the proposed Comcast-Time Warner merger, and explore some arguments for and against.

Late last week, the FCC said it was stopping the “shot-clock” on its review of the Comcast-Time Warner merger, informally limited to 180 days. Public comments will now be received until October 29th. The FCC pointed to incomplete answers from Comcast and Time Warner in their submissions as a reason for the day, along with confusion about how to deal with the confidentiality of some agreements.

With the merger likely to be in the news for some time, here is a general and of course by no means comprehensive overview of some of the arguments for and against.

For

Geoffrey Manne at Truth on the Market lays out a number of arguments in favor of the merger. Manne points out that even now, Comcast and Time Warner “don’t compete directly for subscribers in any relevant market.” Moreover, even post-merger, Manne argues that Comcast will not be able, and will not want, to foreclose competition.

Fundamentally, Comcast benefits from providing its users access to edge providers, and it would harm itself if it were to constrain access to these providers. Foreclosure effects would be limited, even if they did arise. On a national level, the combined firm would have only about 40 percent of broadband customers, at most (and considerably less if wireless broadband is included in the market).

Finally, the companies argue that the merger will promote efficiencies and thus encourage continued improvements in quality and service.

A 2009 paper from Adam Thierer may also provide some reason to be cautious about giving too much weight to anti-merger claims. In the paper, Thierer collects some “apocalyptic predictions” made about big media mergers in the past, including AOL-Time Warner, NewsCorp-DirecTV, and Sirius-XM. In his conclusion Thierer writes:

The point here is not that media mergers are inherently good or always make sense. Indeed, as the examples discussed above illustrate, mergers sometimes prove to be huge blunders.But the hysteria sometimes heard before media mergers are consummated rarely bears any relationship to reality once the deals move forward. Media markets are extremely dynamic and prone to disruptive change and technological leap-frogging. Mergers are often one response to that turbulence.

Against

At Vox, Timothy B. Lee concedes that Comcast and Time Warner’s service areas do not overlap in the traditional cable market. However, this is not the only market the two operate in.

[Cable companies] also negotiate with network owners and content providers on the “back end” of their networks. And here size has a huge — and problematic — impact on the competitiveness of the market.

Allowing a merger might therefore give Comcast too much power in negotiations with Netflix or other content companies, diluting the bargaining position of those companies.

The American Antitrust Institute also argues the merger should be blocked. In a white paper, the AAI–contra Geoffrey Manne–argues that the merger would actually increase Comcast’s ability and incentive to exclude its rivals. As for alleged efficiencies, the paper notes that for efficiencies to be cognizable under the Horizontal Merger Guidelines, they must be merger specific and not vague or speculative. If Comcast has already achieved efficiencies and already touts itself as an innovator, this seems to undermine claims that these efficiencies are merger specific. In something of a twist, the AAI cites Thierer’s 2009 paper in an effort to rebut a pro-merger argument. If a Comcast-Time Warner merger might turn out to be a “huge blunder,” is that not all the more reason to be suspicious of supposed efficiencies?

Posted by Ryan Johansen on October 2nd, 2014 :: Filed under UncategorizedComments: 0

Senators Threaten NFL Antitrust Exemption

This week, the Federal Communications Commission unanimously voted to end its sports blackout rule. For the moment, this vote may not have much practical effect, as the NFL has contracts with its network partners that will allow the league to keep games blacked out if a sufficient number of tickets are not sold.

In the wake of the FCC vote however, Senators Richard Blumenthal (D-CT) and John McCain (R-AZ) have sent a letter to the league urging them to voluntarily end their blackout policy. If not, the letter states that Congress “will be forced to act” by eliminating the NFL’s antitrust exemption. The exemption, granted by the Sports Broadcasting Act of 1961, was first put in place to shield the NFL from antitrust liability which they would otherwise have been subject to for pooling rights to broadcast games. This allows the NFL and the other major sports leagues to sell “packages” of games to broadcast networks.

[Blumnethal] would revoke the permanent status of the antitrust exception and instead make it renewable every five years. A commission comprised of members of the sports world and other industries would create benchmarks and metrics for success in areas including health care, domestic violence and drug abuse that the league would have to meet in order to get the status renewed.

While such changes could strike quite a blow against the NFL’s dominant position, this is hardly the first time the idea has been floated. In 2007, Senators Patrick Leahy of Vermont and Arlen Specter of Pennsylvania threatened to reconsider the NFL’s exemption if progress was not made in making games televised on NFL Network available to more viewers. In 2011, the leading Democrat on the House Judiciary Committee, John Conyers, introduced a bill to end the exemption following the NFL lockout. The Committee’s Republican chairman showed little interest in the bill, not wanting to get involved in a “private dispute,’ and it is likely that current efforts will meet similar resistance. Even so, the situation bears watching moving forward.

“These sanctions have driven down Hachette authors’ sales at Amazon.com by at least 50 percent and in some cases as much as 90 percent,” states the letter, which has been signed by a slew of prominent authors, including Stephen King, Barbara Kingsolver and John Grisham.

Last week, NewsCorp published a letter they had sent to Joaquin Almunia, the European Commissioner for Competition. The letter argued against an offer Google had made to settle its long-running antitrust dispute with the EU. NewsCorp accused Google’s “cynical management” of failure to “respect fundamental property rights.”

Google hit back in a blog post this week, arguing that Google was a force for good in tackling things like online piracy. Google further disputed the idea that they are a “gatekeeper” of the web, instead claiming that they face competition in a variety of areas: